Moffat & Company v Park
| Jurisdiction | Scotland |
| Judgment Date | 16 October 1877 |
| Date | 16 October 1877 |
| Docket Number | No. 6. |
| Court | Court of Session |
Lord Ormidale, Lord Gifford, Lord Justice-Clerk.
Reparation—Damnum fatale—Overflow of water from bursting of pipes—Contributory negligence.—
Circumstances in which A was held liable for injury done through the bursting of a water pipe on his premises to the goods of B stored in an adjoining warehouse; and plea of contributory negligence as a bar to the action, founded on the averment that B had not given timeous notice of the presence of water in his premises, and at once removed his goods, repelled.
Observed that had B's alleged negligence been proved it would not have been contributory to the cause of the injury, but merely an aggravation, and pleadable only in mitigation of damages.
Opinion (per Lord Justice-Clerk) that a proprietor, in introducing water into his premises, is under an implied obligation to protect his neighbours against all ordinary contingencies.
Opinions (per Lord Ormidale and Lord Gifford) that negligence must be proved on the part of the proprietor in order to found a claim against him, though that negligence may be inferred from circumstances.
This was an action of damages, raised in the Sheriff Court at Glasgow, at the instance of George Moffat & Co., commission agents, Glasgow, against Gavin Park, for damage sustained to certain artificial manures belonging to the pursuers, and stored in their premises at Brown Street, Glasgow, through the bursting of water pipes which supplied a tenement belonging to the defender, and situated in James Watt Street there.
The defence was a denial that the loss or damage sued for was caused or incurred by or through carelessness or fault of the defender, or through any defect in the said pipes or connections, and an averment that the damage was largely increased through the pursuers” own fault.
The following were the facts proved:—The pipe which burst was a branch pipe leading from the defender's main tenement to a washing house at the back, and running through a back court about one foot below the pavement. Presumably the pipe burst through frost. The place where it burst was about seventeen yards from the pursuers” premises, which were on a lower level than the defender's. The pipes supplying the defender's tenement were thirty years old, not having been renewed since the tenement was built, and they had frequently before burst at various points, and been repaired by the defender's factor. Though the leakage was considerable, it would take some days for the water to percolate through the soil till it reached the pursuers” premises. The presence of water in the pursuers” store was first observed on Friday the 4th or Saturday the 5th February. It was thought at first to be surface water, which would subside but when it continued and increased the pursuers concluded that it must come from the defender's tenement, and accordingly gave notice on Tuesday, 8th February, to the defender's factor, who caused an inspection to be made, and on finding, by testing the crans in the defender's washing-house, that there was leakage going on in the pipe, had the pavement raised, and so discovered the cause. Though the pipe was at once repaired, it was ten or twelve days before the water ceased coming into the pursuers” premises, owing to the adjacent soil having become saturated with water.
The manure was, at the date of the pipes bursting, stored in sacks in the ground floor of the pursuers” warehouse, the sacks being piled up six or seven high, and there being four or five tiers of them against the back wall through which the water percolated.
On discovering the cause of the water coming into their store on Tuesday, 8th February, the pursuers at once commenced to remove the manure to the upper story of their warehouse. But owing to its great weight and bulk, there being about seventy tons, and to their limited appliances, they were not able to complete the removal in less than five days.
On 13th November 1876 the Sheriff-substitute (Guthrie) pronounced this interlocutor:—‘Finds that on the 4th of February last water which had escaped from a burst pipe leading to a wash-house belonging to the defender was found by the pursuers or their servants to have penetrated to and partly flooded the manure store occupied by the pursuers at 6 Brown Street: Finds that the pursuers failed to take any means to prevent this flooding, or to discover the cause of it, till Tuesday, 8th February, when they gave notice of the flooding to the defender's factor, who immediately took measures to stop it: Finds that the pursuers are barred by this delay and negligence from recovering the damages sued for: Therefore sustains the defences, and assoilzies the defender from the conclusions of the action: Finds him entitled to expenses,’ &c.*
The Sheriff (Clark) adhered on appeal.
The pursuers appealed to the Court of Session.
Argued for the pursuers;—(1) On the facts as proved it was clear that they had not been guilty of negligence to any extent or effect. Where the cause of an injury was latent, reasonable time must be allowed the person suffering the damage; he was not to be deprived of his remedy against the person answerable for the injury because he did not at once divine the cause. So soon as they could reasonably infer that the water was coming from the defender's premises they gave him notice, and commenced to remove their manure with the utmost expedition the circumstances admitted of.1 (2) On the law the Sheriffs were wrong in their application of the...
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